Common law now and then

When studying law in Argentina, law students learn that Common Law is the legal system of many countries, including the United Kingdom and the United States. It originated as a system whose main sources of law were customs and court decisions (case law). Common law developed as an inductive system in which cases were solved on a case-by-case analysis from which legal principles emerged. In contrast, the civil law system (derived from Roman law) developed as a deductive system, where general abstract laws were applied to cases involving similar facts. A brief historical overview helps to understand how the common law system has evolved to include other sources of law.

In1066 William the Conqueror from Normandy, France, defeated the English King Harold in the Battle of Hastings, beginning the Norman Conquest in England. William the Conqueror claimed to be the new King of England and the sole owner of the land. After establishing a feudal system, he realized the need for a common legal system as part of the kingdom’s political organization, propagating this idea which continued later under other kings.

Before the Norman Conquest, disputes had been settled by royal courts which were set up in many villages and solved cases by applying local customs and traditions. The King unified the country by establishing royal courts able to apply a set of rules that were common to the whole realm. Therefore the King sent judges to establish courts in different villages, solve disputes, and gather information about the local rules used. These judges were known as ‘itinerant judges’ since they traveled around the kingdom. After a period of time, these judges met and shared the information collected. Then they decided which customs and rules were more commonly applied to most cases. When travelling and solving cases again, judges tried to apply common laws and not local ones. That is how from the very beginning English law was judge-made law.

One of the main drawbacks of the common law system at that time was that the most important remedy available was damages, that is, monetary compensation. So what happened when pecuniary compensation was not sufficient? People started petitioning the king for other type of relief. At first the king decided the cases by himself, but later referred these cases to the Lord Chancellor, his adviser, who revised cases and reached ‘equitable’ or ‘fair’ decisions. As a result, he created his own court and equitable remedies. This is how the equity system emerged.

Equitable types of relief included:

  • Specific performance: ordering a breaching party to a contract to fulfill one’s obligation.
  • Injunction: ordering an individual to do something, to stop doing something or not to do something.
  • Rescission of contracts

In order for a person to get any of these remedies, one had to start an action before a court of equity, not before a royal court. This resulted in two different court systems: courts of law (applying common law) and courts of equity. As time passed by many conflicts arose between these courts. During the nineteenth century the English Parliament passed the Judicature Acts. These Acts joined both systems only as regards its administration. There would be one type of court system in which judges would have discretion to decide which rules (common law or equity) to apply to a particular case. This is the English court administration as we know it today. Any party may request both legal and equitable remedies in the same action.

This is how common law originated in the United Kingdom. Now it is also the legal system of most of its former colonies: the United States, Canada, Australia, India, South Africa, etc. It originated as a system which applied previous court decisions, customs, and usage to solve disputes among parties. Nowadays most of these common law principles have been turned into ‘written law’, that is, law that has been officially issued by a legislative body. As opposed to ‘written law’, ‘unwritten law’ includes case law and customs.

Most common law countries have codes and statutes that govern a variety of matters. For instance, in the United States there is the USC (United States Code), which deals with commercial matters, and the UCC (Uniform Commercial Code), which compiles federal laws. It is difficult to imagine some areas of the law such as Bankruptcy, Intellectual Property, and Negotiable Instruments, not being generally regulated by a legislative authority.

Currently case law and customs are mainly applied when there are no statutory laws governing a specific matter. They are also heavily relied on as a tool to interpret legislation. This shows that, the original common law sources have not lost importance in face of the enactment of written laws.

This brief overview of the evolution of common law shows how this legal system is not based only on case law and customs. It embodies other important sources of law, such as codes and statutes. It is also shown that the common law system is similar to that of civil law countries. Despite their differences as to their origins and technicalities, both traditional definitions of common law and civil law overlap.

Mariana Baigorrí
Traductora Pública de Inglés
LEI – Legal English Institute


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